Ian HC Chin:

Introduction

This is an appeal against the decision of the learned magistrate handed down on 4 March 1997 by which, after a trial, he dismissed the claim of Chai Phin Chong and Then Hon Fui ('the plaintiffs') for damages for negligence against Zainal Abidin Mohd. Salleh and Pengulu AK Usiek.

Facts Of Case

The facts on the whole are undisputed and they are these. Then Hon Fui, one of the plaintiffs, was on the night of 24 September 1993 driving a motorcar at approximately 70 kph along a straight stretch of the Kuching/Serian Road when Pengulu AK Usiek was driving a truck on the same road but in the opposite direction and at approximately 30-40 kph. Pengulu AK Usiek said that the visibility at that time was not good, that it was raining, that he was using his low beam and that he saw the motorcar before the collision. The truck crossed the middle of the road, about a foot into the other side, and knocked the motorcar causing it to overturn. What made the truck go into the path of the motorcar was the presence of a man pushing an unlit motorcycle on the side of the road where the truck which was being pushed in the same direction as the truck was proceeding. Pen